INTRODUCTION
Human Trafficking is a global phenomenon and every state and country is struggling to cope with this menace. It is frequently addressed as the fastest growing crime after drugs and arms1. Moreover, many argue that it holds the potential in overtaking the other two. This phenomenal growth of trafficking in person is explained as, unlike drugs and arms humans as a commodity that can be sold over and over again.
It is an organized crime that encompasses a wide range of human rights violations, from commercial sexual exploitation to forced labour and organ donation2. It has expanded into increasingly complex and diverse forms over the years, forcing the reform of laws and policies aimed at its elimination and control.
The ‘Trafficking in Persons’3 estimated 20 to 40 million people being globally trafficked, with females and children continuing to be particularly affected by it. According to the UNODC report4, in 2018, about five of every ten victims were adult women and two were girls. These figures, however, are only the tip of the iceberg. The real number of incidents is higher than what has been reported. The crux of the problem is how this crime is committed, with perpetrators operating in the shadows of the internet and the global economy to entrap people for illegal purposes. To address this threat, the United Nations adopted a new “Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, 2000” (hereafter Palermo Protocol). It provided an international framework to combat human trafficking. Countries that have ratified the agreement, such as India, are required to amend their domestic legislation to address the problem at the national level.
Human Trafficking is a horrid reality that confronts the civilized world, and India remains vulnerable to this vice. Due to the nefarious nature of the problem, it is impossible to estimate the number of people trafficked inside and out of India. However, the situation is dire. Statistics depict that India is ranked fairly high in all three components of trafficking- “source”, “transit” and “destination”. The United States Dept of Justice5 placed India on the tier 2 watch list for the 4th consecutive year. According to the NCRB7 report, India has hit three years high in 2019, with a total of 6,616 cases registered and a sharp drop in convictions. The majority of trafficking in India occurs internally, with forced labour being the most serious concern. Debt- based coercion (bonded labour) is used by traffickers to force men, women, and children to work in “brick kilns”, “embroidery”, “textile factories”, “stone quarries” etc. Traffickers promise large advances to entice the workers to accept low-paying jobs, then increase the interest to exorbitant rates; generate new deductions for items such as “health care”, “wage slips”; or concoct the amount of debt, which they use to coerce workers into continuing to work for little or no pay.
Millions of individuals are exploited in commercial sex within India by traffickers. Scheduled caste females were occasionally exploited under the ancient Jogini system, in which Dalit women and girls are ceremonially “married” to a local temple god but are in reality employed as sex slaves for higher caste peasants. Traffickers target Indian women and girls, but also fraudulently recruit significant numbers of Nepali and Bangladeshi women and girls to India for sex trafficking.
To combat human trafficking several laws were enacted by the Indian government. For example, “The Immoral Traffic (Prevention) Act, 1956” (hereinafter ITPA) – deals with trafficking for commercial sexual exploitation. A host of statutes including “The Bonded Labour System Abolition Act,1976”, “The Child labour Act,198611” and “The Interstate Migration Workman’s Act, 1979” are also enacted to cover other aspects of trafficking. Furthermore, several other statutes were enacted that directly or indirectly deal with human trafficking; “The Juvenile Justice Act,2015”, “Protection of Children from Sexual Offences Act, 1973” and major Act like the “Indian Penal Code,1860”15( hereinafter IPC) is also used to address components of offences committed during and after trafficking for commercial sexual exploitation. Moreover, Article 23 of the Indian Constitution explicitly “prohibits traffic in human beings and forced labour” and imposes negative as well as positive responsibility on the states to address the problem of human trafficking and provide support to the victims.
Despite Constitutional guarantees and a plethora of laws, trafficking continues to thrive in the country. The domestic laws dealing with trafficking are not updated to effectively combat this modern slavery. The current legislation especially dealing with trafficking covers one aspect of trafficking i.e., Prostitution or commercial sexual exploitation. Although there is a multiplicity of laws to deal with various aspects of trafficking, the practice of this organized crime remains endemic in the country.
India signed the “Palermo Protocol” in 2002 and ratified it in 2011. However, codified in national law in 2013 by an amendment to the IPC. Two new sections, 37016 and 370A, were added to define “human trafficking.” However, it is contended that the definition was produced half-heartedly and that a significant component was left out of its scope. In a recent development concerning human trafficking, the government solicited proposals for the “Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill, 2021”, which broadened the nature of trafficking offences. However, the bill is yet to become a reality. This article attempts to evaluate the Immoral Traffic (Prevention) Act, 1956 with special reference to the Criminal Amendment Act, 2013 and further, argues for a comprehensive law to deal with changing dimensions of trafficking in India.
INDIA AND INTERNATIONAL LAW
International, multilateral, and bilateral collaboration can play a major role in combating human trafficking. Such collaboration is crucial among countries involved in various phases of the trafficking cycle. Effective action of preventive measures, prosecution of traffickers, and victim protection internationally are pertinent to eradicating human trafficking.
In 2000, after much debate and deliberations, the “Palermo Protocol” was adopted by the international community. It is one of the most significant international instruments in the context of trafficking. It represents a tremendous achievement in international efforts to combat and prevent trafficking in person as it provided the first comprehensive international instrument to address all forms of trafficking, as well the internationally accepted definition of the term “trafficking in person”.
Although India ratified the “Palermo Protocol” in 2011, however, codified in national law in 2013, with the enactment of the Criminal Law (Amendment) Act, 2013. The new amendment to Section 370 followed the same format of the Palermo definition, using the three-part definition for trafficking: purpose, action, and means.
India’s adoption of the amendment to Section 370 of the IPC was influenced by both former case law and state-level legislation6 on trafficking. In April 2011, the Supreme Court of India ruled in Bachpan Bachao Andolan v. Union of India 7that child trafficking could encompass a long laundry list of forms and purposes. The judgment first quoted the Protocol as the standard definition in international law for trafficking in persons. Despite these modifications, the trafficking framework falls short of achieving the protocol’s criteria in a range of aspects.
First, Section 370 does not identify and punish all kinds of trafficking since it omits “forced labour” from its definition. This deliberate refusal to acknowledge forced labour contradicts the Protocol’s definition as well as basic international law. This is a major gap in the legislation as forced labour constitutes the major chunk of cases in India.
Second, India’s existing legislation and policies do not conform with its obligation to prevent trafficking under the “Palermo Protocol”. The ITPA (Section 13A) empowers the Central Government to establish an authority to combat trafficking. However, apart from this enabling clause for the establishment of such an authority, the act primarily concentrates on the punishment of trafficking violations and rehabilitation measures as well. Furthermore, the ITPA makes no mention of trafficking for any reason other than sexual exploitation. Additionally, the Indian Government’s preventive initiatives are ineffective in practice8.
Third, India’s adoption of the “Palermo Protocol” obligates it to develop a framework for the “protection”, “rehabilitation” and “compensation” of trafficked victims. However, the laws and policies, funding mechanisms, and resources for the survivors’ recovery, safety, and compensation remain insufficient. Reports9 also state various difficulties faced by the victims to access compensation and achievement of safe recovery due to disjointed policies and implementation failures.
While in violation of the Protocol’s provisions, each omission has also contributed to the system’s inability to deal with the problem efficiently. Given the country’s reality regarding human trafficking, India should amend its laws and policies to meet the country’s duties under the “Palermo Protocol”.
THE CONSTITUTIONAL MANDATE AGAINST HUMAN TRAFFICKING
The Indian Constitution directly or implicitly forbids human trafficking, and several basic rights are inscribed within four corners, negative as well as positive duties on the state to fight the issue of human trafficking and give assistance to victims. Article 23 “prohibits traffic in human begins and forced labour”10. Article 24 forbids the “engagement of minors in any dangerous occupation or in any plant or mine that is unsuitable for their age”. The terminology of Articles 23 and 24 imposes a clear mandate on the government to take decisive actions to eliminate trafficking as a violation of fundamental rights. Article 1411 provides for “equality in general”, whereas Article 15(3) provides for “special safeguards for women and children”. It\s states that “Nothing in this article shall prevent the State from making any special provision for women and children”. Article 16(1) addresses “equal opportunity in public employment”. It simply directs the government to give chances for equitable results. Article 38 requires states to “establish and maintain, as efficiently as possible, a social order in which social, economic, and political justice informs all institutions of national life”. Article 39 enjoins that “states should direct their policies toward ensuring, among other things, the equal right to adequate means of livelihood for men and women, as well as equal pay for equal labour, regardless of their age or strength”. Article 39(f) provides that children should be “given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood should be protected against exploitation”. Article 45 guarantees “children’s right to free and compulsory education”, now widely recognized as a basic right. Furthermore, Article 46 instructs the state to “promote the educational and economic interests of women and weaker sections of the people and that it shall protect them from social injustice and forms of exploitation”
Thus, a set of constitutional mandates place affirmative responsibilities on governments to engage constructively in support of fighting human trafficking, ensuring that no one’s human rights are infringed.
IMMORAL TRAFFIC (PREVENTION) ACT, 1956: A CRITICAL ANALYSIS
The Immoral Traffic Prevention Act of 1956 is a law that tries to stop trafficking in India. This law was made to follow the United Nations Convention for the Suppression of Traffic in Persons from 1950. The main goal of this law is to protect people from being treated and to punish those who do bad things to others.
The law talks about traffic but it mainly focuses on people being forced into prostitution. It tries to stop people from making money by exploiting others in brothels. The law also wants to help victims by giving them a place to stay. However this law is not good enough. Needs to be looked at carefully.
One big problem with this law is that it does not clearly say what human trafficking means. Of explaining what commercial sexual exploitation is the law mostly talks about brothels and punishing people who are involved with them. This makes it hard to understand if the law is trying to stop prostitution or just the act of trafficking people for prostitution. Because of this many people who help traffic victims can get away without being punished.
The law says that a brothel is a place where least two sex workers are working to make money for someone else. This definition is too narrow. Does not cover other places where people can be exploited, like hotels or massage parlors. Judges have tried to make this clearer in court cases. It is still not good enough. For example the law can punish sex workers who are working alone even if they are not being exploited.
The law also does not talk about practices that are unfair like the devadasi and jogin systems. Even though the Supreme Court has said that these practices are against the law they should be included in the law to make it stronger.
The beginning of the law says that it wants to stop prostitution. It allows people to do prostitution in private. It punishes those who make money from it. However this law does not make it clear if it is okay for family members to depend on someone who is doing prostitution. This can lead to outcomes especially if the woman is the only one making money for her family.
The law punishes people for doing prostitution near places especially if children are involved. While it is good that the law tries to protect children it does not have rules to protect children who are victims of trafficking. The law also focuses much on keeping public places decent which can lead to sex workers being targeted instead of the people who are exploiting them.
Another part of the law that is criticized is the one that punishes people for trying to get customers. This law is often used to arrest sex workers of the people who are exploiting them. Since the law relies on victims to testify and victims often depend on their exploiters it is hard to punish the culprits.
The law also allows judges to remove women from areas if they are suspected of prostitution. While some courts have said that this is against the law others have said it is okay if it is for the good of the public.
The Immoral Traffic Prevention Act has problems. It does not define some terms clearly which can lead to misuse by authorities. The law also does not provide support for victims, such as education, job training and a safe place to live. Because of this victims often go back to their lives after they are released. The law does not say clearly how victims should be compensated, which can delay or deny them justice.
In short the Immoral Traffic Prevention Act is a law that needs to be updated. It tries to stop trafficking but it is not good enough to deal with the complex problems of trafficking in India. The Immoral Traffic Prevention Act needs to be changed to better protect victims and punish those who exploit them. The Immoral Traffic Prevention Act is a law that needs to be rewritten to make it stronger and more effective, in stopping trafficking.
CONCLUSION
The Immoral Traffic Prevention Act of 1956 is a law that has been around for a time.. Even with changes made to it the basic way it works has not changed much. This law is more about punishing people than protecting them. For example parts of the law like Sections 8 and 20 are often used against the people who’re already victims of trafficking instead of going after the people who are doing the trafficking. The law does make it worse for people who make money from prostitutes. It also hurts the people who depend on them like their children and takes away the way they make a living.
This law is very focused on punishing people who exploit others for sex. It does not pay much attention to other kinds of trafficking. It spends much time on prostitution and not enough time on the bigger problem of trafficking like the Palermo Protocol says. This makes it hard to tell the difference between people who choose to do sex work and people who are being forced into it. Of helping sex workers the law often makes it harder for them to make a living and do their job. The law also does not do a job of protecting the people who are victims of trafficking. There are some rules in place to help them. They are not clear and do not work very well so people do not get the help they need. The law also does not do a job of dealing with trafficking that happens across borders.
The problem of trafficking is very complicated and it is getting worse. Around the world countries are starting to make laws that’re more focused on helping the victims.. In India not much has changed, except for a few small changes to the law. The Immoral Traffic Prevention Act of 1956 is still the law that deals with trafficking.
Trafficking is a serious violation of human rights so any law that deals with it needs to put the protection and dignity of the victims first.. The current law in India does not do that. It focuses more on enforcing the law than on helping the victims. Because trafficking is such a problem India needs a new law that is comprehensive and takes into account the specific situation in India as well, as the principles of the Palermo Protocol. The Immoral Traffic Prevention Act of 1956 needs to be changed to better protect the victims of trafficking.
SUGGESTIONS
1. Make a Law Against Trafficking
India needs to make one law to stop trafficking, not many small ones. This law should help victims, like the Trafficking in Persons Bill that is still pending. The law should:
i. Cover all types of trafficking like forced work, selling body parts and sexual abuse
ii. Follow the rules set by the Palermo Protocol
iii. Not just focus on prostitution like the ITPA law does
2. Help Victims Not Punish Them
Current laws often punish people who are trafficked not the traffickers. We need to change this by:
i. Not punishing people who are trafficked those under Section 8
ii. Keeping them safe and protected by law
iii. Treating them as people with rights not as offenders
3. Support Survivors
We need a plan to help survivors of trafficking. This plan should include:
i. Giving them money quickly
ii. Helping them get education, skills and jobs
iii. eeping an eye on shelters to prevent abuse
4. Improve How We Enforce the Law
To make a difference we should:
i. Create a team to stop trafficking
ii. Teach police and judges how to handle victims with care
iii. Work with states and countries to stop trafficking, especially with countries next, to India
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Footnotes
1. Siddharth Kara, ‘Designing More Effective Laws Against Human Trafficking, 9 NW.J.INT’L HUM.RTS 123 (Spring 2011).
2. DR SARFARAZ AHMED KHAN, SEX TRAFFICKING AND LAW 2 (Satyam Law International) (2018)
3. U.S. Department of Justice, Trafficking in Person Report,2021, www.state.gov/reports/2021-trafficking-in- person-report.
4. United Nations Office of Drug and Crime, Global Report on Trafficking in Person,2020, https:/data-and- analysis-and-analysis/glotip.html.
5. US DEPARTMENT, supra note 3.
6. The Goa Children’s Act,2003 and Rules, 2004, No.12, Goa Act, 2004.
7. Bachpan Bachao Andolan v. Union of India & Ors, (2011) 5 SCC.
8. US DEPARTMENT, supra note 3.
9. Avon Global Centre for Women and Justice at Cornell Law School, Centre for Health Law, Ethics and Technology at Jindal Global Law School, Cornell Law School International Human Rights Clinic, and International Human Rights Clinic at the University of Chicago Law School Report, “India’s Human Trafficking Laws and Policies and the UN Trafficking Protocol: Achieving Clarity” (2016), https://jgu.s3.ap-south- 1.amazonaws.com/cjls/India’s+Human-Trafficking.pdf.
10. INDIA CONST. art 23, cl.1.
11. INDIA CONST. art 14.